Affirmative consent as per this law is defined as “…affirmative, conscious, and voluntary agreement to engage in sexual activity”

There has been considerable uproar over this law, from Reason to NYMag, Time, The Nation and more.

One of the biggest arguments against this law are questions of justice in the procedure itself.

First, let’s make sure that everyone here understands one thing: this law only applies to college campuses in California. It cannot be used to send anyone to jail and can, at most, be used to expel a student for presumably raping or sexually assaulting another student. Though, good luck with that.

Detractors say that this law will force all men into being considered rapists, makes everyone a rapist, shifts the burden of guilt, or it simply won’t do anything against real rapists.

Regardless of these objections, the correct view seems to me to be: affirmative consent is good as a cultural norm, but bad as a law.

Affirmative Consent as a Cultural Norm: Yes

It should be well understood by libertarians and anarchists that laws usually don’t end up where the grassroots supporters want them to go. A good example of this (one that Nathan Goodman noted back in May) is the USA Freedom Act. An act that was supposed to remove big features of the surveillance state, yet ended up being compromised and severely weakened before it was passed.

But laws are not the same as cultural norms. Laws are things that address issues that we believe are justifiably preventable by force. Cultural norms can be things that we believe are either justifiable in some way, but don’t necessarily have to be. They are things that shouldn’t just be left up to the individuals in a given relationship, instead a general community can help formulate standards that will cultivate a given environment for its members. Having affirmative consent as a guiding principle or cultural norm, then, is very different from having it as a law.

As a cultural norm it becomes a bigger conversation between equals. It becomes possible to challenge, revise and reorganize our lives in accordance with this norm. When we suggest to our friends that they should aim for affirmative consent, or hold an impromptu protest, invite a public speaker on the matter, hang up signs or integrate this principle into our daily lives, then we are trying to cultivate a norm about consent and how we deal with its absence.

For example, there’s a difference between wanting affirmative consent as a standard and wanting it to be the law.

As Tara Culp-Resser of ThinkProgress writes,

Affirmative consent isn’t based on the idea that every sexual encounter is a rigid contract between two parties. No one is suggesting that college students need to run through a checklist before unbuttoning each other’s shirts. Instead, it’s more about broadly reorienting about how we approach sex in the first place. …

Under an affirmative consent standard … both partners are required to pay more attention to whether they’re feeling enthusiastic about the sexual experience they’re having. There aren’t any assumptions about where the sexual encounter is going or whether both people are already on the same page. At its very basic level, this is the opposite of killing the mood — it’s about making sure the person with whom you’re about to have sex is excited about having sex with you.

Making sure someone else is enthusiastic about what you’re doing with them requires you to consider their wants and needs, think about how to bring them pleasure, and ultimately approach sex like a partnership instead of a means to your own end.

It should also be made clear that non-verbal cues are treated as a legitimate method of obtaining affirmative consent under this law. If, for example, you ask someone if you can kiss them and they respond by passionately kissing you, I don’t think you or the person you’re involved with, or any disciplinary board is going to take that seriously as an example of “sexual assault”.

There are concerns that affirmative consent, even as a norm or a standard, will make sex “unsexy” or make the whole experience not fun.

Shikha Dalmia, a senior policy analyst at Reason.com writes,

The truth is that, except in the first flush of infatuation, both partners are rarely equally excited. At any given moment, one person wants sex more passionately than the other. What’s more, whether due to nurture or nature, there is usually a difference in tempo between men and women, with women generally requiring more “convincing.” And someone who requires convincing is not yet in a position to offer “affirmative” much less “enthusiastic” consent. That doesn’t mean that the final experience is unsatisfying — but it does mean that initially one has to be coaxed out of one’s comfort zone. Affirmative consent would criminalize that.

It’s difficult to see exactly where Dalmia wants us to go with these conclusions. Is equal excitement presumed by advocates of affirmative consent? Does affirmatively and enthusiastically consenting to sexual acts from your partner mean that you’re always into it as much as they are? I don’t recall anyone suggesting this or the norm requiring it. So what does this really have to do with the idea of affirmative consent?

Nevertheless, I find it plausible that talking a lot could kill the mood for some people, but that’s, perhaps, why they rely on non-verbal cues. But, as I said before, this is perfectly allowable: both under the law and, so I’d presume, for advocates of the norm generally. Explicitness in sexual relationships is awesome, but it isn’t everything and, for people who are good with body language and long-term partners who understand each other and know each other well, it could probably work with even less explicitness.

Even then, let’s say you have two people who are fairly neuro-typical, they’re both well-intentioned and they’re both sober and drug free, the worst thing that’s probably gonna happen (via an emphasis on body language and facial movements, less explicitness in general, etc.) is a simple mistake.

But in that ideal situation it is still a good idea to use affirmative consent; partly because it’s too easy to just say, “oh I didn’t understand you didn’t want X” as a way to justify violating someone’s boundaries. To be clear, if this happened only once and they took steps to ensure it didn’t happen again, that’s different.

The problem here is that rapists can easily use a very non-explicit system to take advantage of people that do not say what turns them on. It’s also an easy way to, generally, get away with rape when facing reprimands from a given system. You can simply claim that they said no at first, but you “convinced” them otherwise. Or they didn’t say no after you did X.

And this is an ideal situation with totally vanilla sex. It gets more complicated with any form of BDSM or slapping where it’s pretty much mandatory to talk stuff out beforehand.

Sure, the affirmative consent model isn’t perfect and people who want to exploit others can still get around it (and have), but it’s a lot harder to gaslight when you’ve talked a little about things first. Talking, instead of everyone just presuming what’s cool or leaving it mostly up in the air, can also make things go a lot smoother — sexually speaking.

So while I understand the spontaneous nature of sex is important if making sure people’s boundaries are being respected during a sexual encounter is killing the “sex appeal” for you, then my suggestion would be to re-examine how you see sex.

A lot of how you re-examine sex is to look at consent 101 and how you can use affirmative consent in a myriad of ways, not just boringly ask, “do you want to have sexual intercourse with me on this fine evening?”

This isn’t the main point, though. Whether affirmative consent is “sexy” or not really shouldn’t matter in the end. It should matter how it (as a cultural norm or a law) affects the prevalence of rape. As of now there isn’t much data on how these sorts of campaigns affect rape. There was a campaign in some Canadian provinces that discouraged rape and encouraged affirmative consent with one city seeing a decrease in rape but another seeing an increase.

Where the effectiveness is concerned critics have pointed to a study done in 2002 by David Lisak and Paul Miller that, according to them, proves that rapists are a minority and that they aren’t people who innocently miscommunicate or just don’t understand they’re rapists.

Yet, even if this true, I believe that the critics overstate how much this proves. Even if it’s completely true that the majority of rapists are repeat offenders and people who understand what they’re doing, this doesn’t preclude them from not seeing themselves as rapists in every situation. Though it can certainly be the case that they do know they’re rapists. It also doesn’t stop there from being a non-negligible minority of people who do not understand what they’re doing is rape.

A closer look at this study reveals that the questions make it difficult to see where affirmative consent came into those relationships. We only know from this study that these sexual encounters ended in rape or sexual assault. So we cannot presume from this study alone that the affirmative consent model would hold no negligible effect on rapists.

It’s worth noting that the study asks questions about doing things that are very easily identifiable as rape. So it’s not clear how this study would have been able to include people who did things that they didn’t realize were non-consensual.

It’s not clear how this study shows anything at all about whether or not affirmative consent could prevent rape. Because if the person had committed rape in a way that affirmative consent could have prevented, it’s perfectly possible that they could go on not realizing that they had done so.

Now, we don’t have the data necessary to know the results of this norm as law will have. And it’s possible the norm could do more damage than good. But with such little data either way it also seems irresponsible to not let the universities declare their own methods of trying to deal with sexual assault on campus. If we are to figure out how to minimize the role of assault and rape in student’s lives, then experimentation should not only be allowed but encouraged.

Finally, the alternative of “no means no” seems to result in an implication being made about how consent works and furthermore acts as a tax on (predominately) women as Amanda Taub at Vox writes,

The law didn’t come out of nowhere. It emerged as a response to a status quo that has proved to be an all-too-powerful tool for sexual predators, because it enables them to claim to see consent in everything except continuous, unequivocal rejection. That status quo puts women in the position of having to constantly police their own behavior to make sure that they are not giving the appearance of passive consent. That’s not only exhausting; it’s limiting. It reinforces power imbalances that keep women out of positions of success and authority.

There are plenty of other problem Taub highlights with the usual way of thinking. It leads to situations where people could justify fairly clear signs of refusal as acquiescence. This in turn puts a big burden on the women to refuse a man who is, often times, much stronger than her.

That’s all leaving aside the problem of the police and how they often can’t help or sometimes flat out refuse to help survivors or question them the whole time instead of taking them seriously. And yes, false reporting is actually a really really rare occurrence. Compound this with massive under-reporting and low prosecution rates (both on campus and generally) and I doubt that women are going to be using this as a weapon or all men turned into rapists.

We need to change the culture of how people understand sex as well as rape. We can’t do that by standing by while our current model of “no means no” proves ineffective. Let’s at least give different norms a chance to play out and see how they affect the reality of rape culture.

Affirmative Consent as a Law: No

None of the above is meant to deny that there are legitimate criticisms of this law as a law.

The law actually includes a section where it says that,

This bill would require the governing boards of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions, in order to receive state funds for student financial assistance, to adopt policies concerning sexual assault, domestic violence, dating violence, and stalking that include certain elements, including an affirmative consent standard in the determination of whether consent was given by a complainant.

This isn’t a part of the law I’ve seen people critique, but it’s basically what makes this law a law and not just a cultural norm. The state is engaging in economic manipulation. If the institutions of higher education in California don’t want this affirmative consent standard for disciplinary actions then they may be denied funding from the state.

That’s the real part of this law that is troubling. Because the question must be asked: Are these institutions abiding by this standard because they genuinely want to and moreover understand what’s happening on campuses? Or are they doing it to merely appease the state and get more funding? Even worse, most campuses will say “of course we want this standard with or without the money” but time will tell how effectively or honestly they actually care about this standard or enforcing it on campuses.

Another problem with this law is the problem of having feminism and the state working together as Laurie Essig, an associate professor of sociology and gender, sexuality and feminist studies helpfully points out,

Feminists work hard to show that the state is both racist and sexist, and yet some feminists imagine that very same state making the world a safer place for them.

If feminists want to help survivors then it’s best not to rely on the state whose main agents, the police, are notorious for not believing survivors. Survivors often don’t report and there’s plenty of good reasons not to or at least not insist that they should. As anarchists if we don’t trust cops with the basic job of protecting our streets or protecting our property, then why would we expect them to protect the bodies of survivors? There are also neurological reasons why cops simply won’t believe survivors in many cases.

There is a general problem with trying to codify sexual relations instead of leaving them up to the individual people. There’s obvious problems with the current framework of “no means no” and the focus on women having to say “no” instead of both people needing to get a “yes”. But even so there’s going to be situations where enthusiastic consent is murky or the situation is going to be a lot more gray than the people who wrote this law thought about. And unlike community standards and norms, laws aren’t able, by their very nature, to change as quickly or effectively in response to public demand.

Cathy Young in her “The Problem with ‘Yes Means Yes‘” notes that,

Nonverbal cues indicating consent are almost certainly present in most consensual sexual encounters. But as a legal standard, nonverbal affirmative consent leaves campus tribunals in the position of trying to answer murky and confusing questions — for instance, whether a passionate response to a kiss was just a kiss, or an expression of “voluntary agreement” to have sexual intercourse. Faced with such ambiguities, administrators are likely to err on the side of caution and treat only explicit verbal agreement as sufficient proof of consent.

While I’m not convinced of what the standard reaction to non-verbal agreements would be (I think the passionate kiss example is a clear case of enthusiastic non-verbal consent), I do think that Young and others are on to something when they criticize this law for trying to codify sexual relations.

I’m simply not convinced that sexual relationships are “easy” or that “everyone understands non-verbal cues” as some of the defenders of the law have stated. I wish that was the case, but plenty of people have trouble with reading people’s facial expressions, body movements, social norms and general cues that are non-verbal. The issue of drinking and drugs, which can be agreed to ahead of time, in addition to sex makes things a bit more puzzling. Trying to force one single model on everyone in all sexual relationships, generally sounds like a bad idea.

Young and other critics have noted that whether this law actually sends people to prison (it doesn’t and can’t) or not, this still sets the precedent that the state can get involved in the sexual relations of people. Which, as we know from laws involving marriage or prostitution getting the state involved is always a good idea to get power-hungry law-makers to extend state power even more in the future.

But one of the biggest problems is a problem that blogger Fredrik de Boer points out,

…I feel strongly that explicit consent laws actually undercut the absolute ownership by the individual over her or his own sexual practice.

One of the most important parts of the feminist project is insisting that women own their own bodies. This has application to abortion, where the pro-life movement seeks to take physical control of women’s bodies away from them. And it has application to rape.

The insistence of those who work against rape is that only the individual has the right to define appropriate and wanted sexual practice. With the informed consent of all adult parties, no sexual practice is illegitimate. Without that consent, no sexual practice is permissible.

This is a humane, moral standard that has the benefit of simplicity in application and clarity in responsibility. But it stems first and foremost from the recognition of individual ownership. To define the exact methods through which individuals can request and give consent takes away that control and turns it over to the state, or even more ludicrously, to a dean or some academic grievance board. We should be expanding the individual’s control over their own sexual practice, not lessening it.

To the extent that this law puts more power into the hands of the state to define what makes or breaks sexual relationships, anarchists should oppose it. But to the extent that this cultural idea, as a cultural norm, gains traction and helps build beautiful, harmonious and sexually fulfilling relationships, then anarchists should advocate it — but advocate it decoupled from the state.

We don’t need the government in our bedrooms any more than it is, whether direct or indirect.

The question of our sexual autonomy is old. We demand our bodies — now.

The statement was widely discussed and displeased many in social media, especially for following IPEA‘s research in Brazil, in which 58.5% of interviewees agreed with the assertion, “If women knew how to behave, there would be less rape.”

It is true that Constantino considered that the research’s results indicated the backwardness and the macho culture that are still prevalent in Brazil. Nevertheless, he does not notice that his statement is an accomplice of this toxic culture. The quote, in context, goes as follows:

While the machismo culture does not fade away and exemplary punishment does not come, it would be recommended that women should be more cautious, that they should try to look just a little bit more prudish, and preserved somewhat their intimate parts. I have no doubt that “good girls” are under less risk of sexual assault.

Constantino commits the fallacy of moralizing the explanation of rape. Let us compare: Say sex workers had a bigger chance of being raped than the average woman. This is just an empirical question, of knowing whether sexual work increases or not the risk of rape.

Now, imagine we said this: “Sex workers, because they’re acting immorally, have a higher chance of being raped, while ‘well behaving women’, because they act morally, have a lower chance of being sexually assaulted.” This offhand comment about the morality of the act adds nothing to the explanation and, worse, makes “having a lower chance of being raped” something moral, worthy of celebration. It is a subtle instance of slut shaming.

Sarah Skwire notes correctly that one of the distinguishing features of the rape culture is arguments such as “the victim shouldn’t have been there/shouldn’t have drunk/shouldn’t have worn these clothes/shouldn’t have gone to that party.”

As Charles Johnson highlights, here we see the “unwritten law of patriarchy:” culture puts the woman in a position of dependence by the relationship between the violence committed by a few men and the attempt by other to protect and control women. These two behaviors work in conjunction to impose rules on women’s personal lives, limiting their freedom. The moralizing explanation of rape is part of this cycle.

Constantino may as well say, “Women who don’t leave their houses are less likely to be raped.” Well, it depends. If family members or acquaintances rape them, that statement is false. He could also say, “Women who don’t drink are less likely to be raped.” All right, but only if he is talking about sexual assaults committed against drunk women. We cannot extrapolate.

We live in a world where women are deceived into accepting false job offers abroad and forced into prostitution. Where women are raped only for going back home from work late at night. Where women are raped because their house has been broken into. Where there is child prostitution and sexual abuse. Where agents of the state can throw a 15-year-old girl in jail along with several men. Where a community council can condemn a girl to collective corrective rape. Where women might be in the middle of war and cannot flee. Where women hop on a van with their boyfriends not knowing who is inside. Where family members, acquaintances and even sexual partners are ill intentioned.

In a world where women are raped only for being women, Constantino should, at the very least, apologize for his pointless moralizing.

“The central identifying feature of a reformist effort is that it fails to strike at the root of oppression — power. All such efforts aim either at changing individual behavior without regard to the individual’s position in the overall system of power, or at creating an authoritarian institutional framework staffed by upper-middle class “helping professionals” to protect the individual from oppressive behavior.”

When I heard that two rapists in the Steubenville, Ohio case were convicted and sentenced to jail, I’ll admit  part of me felt a sense of relief. According to the Rape, Abuse, and Incest National Network (RAINN), only 3% of rapists ever spend a night in prison. It feels good to see rapists fall into that 3%. But the more I consider this case, the more I realize that no prosecution, verdict or sentence can solve the problem.

The men who were convicted raped a 16-year old girl — digitally penetrated her while she was drunk, vulnerable and unconscious. Photographs of the girl’s naked body were taken and shared without her consent. These acts are appalling violations of the right to control one’s own body, the most basic principle of liberty. Rape and sexual assault violate that right in the most personal, damaging and invasive way.

If only the bystanders who witnessed the assault had understood this. It happened at a party. Many peers of the victim and the perpetrators witnessed the assault as it happened and posted videos and tweets about it online. One boy spoke up in the victim’s defense, but was laughed at and did not successfully stop the assault.

Evan Westlake testified at  trial that he saw one of the perpetrators, Trent Mays, smacking the victim’s hip with his penis. He also saw Ma’lik Richmond, the other perpetrator, penetrating the victim’s vagina with two of his fingers. When asked why he didn’t intervene, he answered “it wasn’t violent. I didn’t know exactly what rape was. I always pictured it as forcing yourself on someone.”

What Westlake witnessed was violence. It entailed physically violating another person’s boundaries. But, as is often the case in real rapes, there was no struggle, no armed stranger in the bushes, no screaming victim. What Westlake witnessed was rape. But it wasn’t the comparatively rare stranger rape that haunts the popular imagination. So Westlake did not even recognize it.

We need to change that. In a culture that educated young people about respecting boundaries and treating other people’s bodily autonomy as sacrosanct, Westlake would have known exactly what rape was, and he would have intervened. Throughout the night, when boys assaulted the victim, joked about raping her, and carried her unconscious body between rooms, multiple people would have intervened. But evidently, we don’t live in that culture.

Special Judge Thomas Lipps did little to bring us closer to that culture. Even as he convicted and sentenced the rapists, he made several troubling statements. For example, he claimed that this case shows alcohol is “a particular danger to our teenage youth.” Alcohol was not the problem here; rape was. People can drink alcohol voluntarily and consensually.  Drunk people have the right to have their boundaries respected.

Focusing on underage drinking enables victim blaming. In the Steubenville case, a litany of sexists blamed the victim, one even suggesting that the state should prosecute her for underage drinking. Victim blaming has also played a role in threats the victim has received throughout this case.  By shifting the focus from boundaries and consent to consensual alcohol consumption, Lipps’s comments enable this attitude.

Lipps also advised teenagers “to have discussions about how you talk to your friends; how you record things on the social media so prevalent today; and how you conduct yourself when drinking is put upon you by your friends.” Social media was not the problem here. In fact it provided vital evidence. Rather than advising teenagers to not rape, Lipps advised them on how to avoid getting caught.

With such from the judge, one wonders whether the rapists will learn anything. By the age of 21, both will have been released from juvenile detention. I doubt that prison will teach them to respect others’ bodies and rights. As an institution, prison is built on coercion, on systematically violating people’s bodies. Sexual violence is rampant in juvenile detention centers, and is disproportionately directed against LGBT detainees and survivors of prior sexual assault. The Steubenville rapists might continue to rape captive victims in detention centers, and be released with even less respect for bodily autonomy than they started with.

If prosecutions and prisons won’t stop rape, what will? A good start is educating people, especially young boys, about what rape is, why it’s wrong, and the ethics and practice of bystander intervention. Future Steubenvilles can be prevented by creating a culture where people stand up for each other’s basic rights and take issues of consent seriously.

A series of serendipitous events this week pointed me to this central truth. Two of my Twitter friends, Jakob Petterson and Natalie Reed (http://freethoughtblogs.com/nataliereed), raised the question of when environmentalism and racial and gender justice started being propagandized as matters of purely individual consciousness. Today, coming out of my natural foods cooperative, I saw one of those “peace poles” designed to be mounted in your front yard as a moral statement.

The central identifying feature of a reformist effort is that it fails to strike at the root of oppression — power. All such efforts aim either at changing individual behavior without regard to the individual’s position in the overall system of power, or at creating an authoritarian institutional framework staffed by upper-middle class “helping professionals” to protect the individual from oppressive behavior.

In the late 1960s Charles Reich’s vision of social change in The Greening of America put a shift in consciousness ahead of changes in the power structure. What really mattered was not dismantling the power of the centralized state and giant corporations, but seeing that those institutions were run by people in beads and bell-bottoms who, like, had their heads in a good place, man.

In the utterly godawful Captain Planet cartoon, all the villains like Horrid Greedly were motivated, not by material incentives to externalize their costs on society, but by an irrational hatred of nature. And the proper response was to encourage kids to recycle and turn off lights in empty rooms — not to attack corporate capitalism’s basic structural imperatives to utilize production capacity through planned obsolescence and grow through extensive addition of subsidized inputs rather than increased efficiency. Which stands to reason, of course — the latter alternative doesn’t sound like something Ted Turner would much cotton to.

As for those ridiculous “peace poles,” I have nothing against consciousness-raising as one weapon in the arsenal of the peace and social justice movement. But if that change in consciousness consists of Coleman McCarthy teaching “peace studies” classes about “Martin Luther King and the Rabbi Christ,” it’s just as much an opiate as the consciousness it’s replacing. The only effective change in consciousness will be one that involves seeing through the Matrix — that is, understanding war in the context of the system of power it serves. We have war because the people running things have a material interest in fighting wars. War, like all other state policy, is an instrument of the ruling class’s interest. Like every other aspect of the power structure, it’s just another means of extracting surplus labor every waking moment of our lives; in Morpheus’s words: “When you go to work, when you go to church, when you pay your taxes.”

The feminist concept of rape culture, although frequently misunderstood, describes a fundamental principle that’s more broadly applicable to all forms of oppression and exploitation. One effect of rape culture is to confer a form of male privilege even on the protectors of women. The ubiquity of the threat of rape, and women’s dependence on “good guys” for protection, directly empowers patriarchal institutions in a way that — whether or not they intend it — creates a power differential on behalf of men.

One example of hacking at the branches rather than striking the root of oppression, in the case of feminism, is the tendency to ignore the way patriarchy interlocks with other forms of structural oppression — particularly class oppression. So the internal structure of the Second and Third Wave feminist movements replicates the hegemony of the upper middle class in the larger society. The movement is disproportionately led by an establishment from the managerial-professional strata with a tendency to see themselves as managing the less privileged — sex workers, transgender women, working poor women, etc. — “for their own good.” And their policy agenda gravitates toward the needs of managerial-professional women: Cabinets and boardrooms that “look like America.” Of course this obscures the oppressive nature of the power of cabinets and boardrooms as such, and the mutually reinforcing relationship between patriarchy and hierarchical corporate/state power.

This same good cop/bad cop dynamic characterizes all power relationships. The liberal reformist fights oppression, not by attacking the fundamental sources of the bad guys’ power, but by creating a class of good guys to protect us against the bad guys. The “protectors” are empowered by the preexisting system of oppression; they see their primary role, not as dismantling it, but to make it more bearable — and hence, in objective terms, more sustainable. More often than not, liberal reform involves simply putting the oppressive power structure itself under the control of “progressive” or “enlightened” people who make the system seem a bit kindler and gentler but leave the fundamental processes of exploitation and oppression in place.

A good example is environmental policy in the form of a “Green New Deal,” which leaves the basic structural imperatives of mass-production capitalism in place — but converted to the production of bullet trains and wind generators. And of course the leading advocates of this model are uber-capitalists like Bill Gates and Warren Buffett, who want to make green technology the basis of another Kondratiev long-wave or “engine of accumulation” by enclosing it (via “intellectual property” law) as a source of rents.

Even when our overlords are sincerely humane, the goal (as explained by the farmer in Tolstoy’s parable) is to treat the livestock as kindly as possible — consistent with the primary goal of keeping us inside the fence and continuing to milk us. So long as the alternative is between the phony Reagan/Thatcher model of “free markets” versus New Deal liberalism or Social Democracy, I have no quarrel with those who take advantage of the opportunities the latter afford to make oppression more bearable. After all, in its essence the neoliberal model of “free markets” is as statist as state socialism — and I’ll take the form of oppression that weighs less heavily on my own neck.

But sooner or later, we need to look up from the tasty oat mash that nice farmer gave us and start thinking about how to break out of this fence.

“The Root is Power” on C4SS Media.

De meest voorkomende mythe over de politie is dat de politie er is om het volk te beschermen tegen criminaliteit. Soms doen ze dit werk goed maar meer dan eens is de politie zelf crimineel bezig. Hier heb ik het niet alleen over kleine vergrijpen; ik heb het over aanranding en verkrachting.

Neem bijvoorbeeld de zaak van politie agent Michael Vagnini uit Milwaukee. Op 9 oktober werd Vagnini aangeklaagd voor het onvrijwillig binnendringen met zijn vinger in de anus van verdachten wegens het ‘op zoek zijn naar drugs’.

De FBI omschrijft verkrachting als het “penetreren van de anus of vagina doormiddel van een object of lichaamsdeel”. Door deze definitie te gebruiken heeft Vagnini meerder mensen verkracht terwijl hij zijn werk uitvoerde. Naar verluidt zorgde dit bij een verdachte tot anale bloedingen die meerdere dagen duurde.

In plaats van het beschermen van het volk kozen andere agenten ervoor om hun collega te beschermen en te assisteren. In een incident werd een verdachte vastgehouden door andere agenten terwijl Vagnini hem verkrachtte. Daarbij was de politie van Milwaukee al ‘een paar jaar’ bekend met dit soort incidenten. Maar ze wachtte tot ‘de autoriteiten een patroon konden herkennen’ voor zij maatregelen zouden nemen om de agent verantwoordelijk te stellen. Oftewel; De politie wist dat Vagnini een verkrachter was, maar ze moesten wachten tot ze iets deden tot dat ze hadden vastgesteld dat hij een serieverkrachter was.

Dit verhaal is verschrikkelijk maar helaas geen uitzondering. In de Amerikaanse staat Utah is het bekend dat de politie katheterisatie onderzoeken doet. Hierbij brengen ze onvrijwillig een katheter in bij de urinebuis van een arrestant om de arrestant op drugs te kunnen testen. In 2004 werd Haley Hooper door vier agenten tegen de grond geduwd terwijl er een katheter bij haar werd ingebracht. Hoewel dit wettelijke als verkrachting moet worden gezien werden de agenten in kwestie beschermd door wetten die ambtenaren in functie hiervoor immuun stellen. Agenten die zich schuldig maakten aan andere gevallen van katheterisatie onderzoeken weren bevorderd in plaats van terechtgesteld.

Deze verkrachtingen gebeurden onder het excuus van het vergaren van bewijsmateriaal maar sommige agenten gaan nog een stapje verder. Craig Nash, een politieagent uit San Antonio (California, VS) verkrachtte naar verluidt een prostituee toen hij haar had aangehouden. In deze zaak was er DNA bewijs aanwezig, wat in normale omstandigheden meer dan genoeg bewijs is voor een veroordeling. Maar Nash wist zijn verdediging zo te voeren dat hij werd veroordeeld tot ‘ambtsrechtelijke onderdrukking’, waar maar een jaar celstraf op staat.

Tegelijkertijd werd het slachtoffer van de verkrachting, een transseksuele vrouw, opgesloten in een mannengevangenis. Hier werd ze waarschijnlijk opnieuw slachtoffer van meervoudig seksueel geweld en mishandeling. Als dit niet het geval dan komt dat omdat zij voor haar eigen veiligheid werd opgesloten in een isoleercel. Hoe dan ook werd het slachtoffer van Nash harder gestraft door het rechtssysteem dan de man die haar verkrachtte.

Dit zijn maar een paar voorbeelden. Charles Johnson van het Molinari Instituut heeft veel meer van dit soort zaken gedocumenteerd in een serie van blogberichten onder de naam “Rapists on Patrol.” (Verkrachters op Patrouille).

Verkrachtingen en aanrandingen worden vaak niet gemeld. Volgens het Amerikaanse ‘National Crime Victimization Survey’ worden 54% van de verkrachtingen niet gemeld bij de politie. Hiervoor zijn vele redenen. Bijvoorbeeld zouden slachtoffers bang kunnen zijn dat zij veel nauwkeuriger onderzocht zullen worden dan de daders, en dat de meest intieme details van hun privéleven gebruikt zullen worden voor slachtofferbeschuldigingen.

Maar wanneer de verkrachter een agent is wordt het nog onaantrekkelijker om het misdrijf te melden. De verkrachter wordt niet alleen beschermd door seksistische sociale normen maar ook door zijn machtige rol in het strafrechtssysteem. Hierbij zou ik stellen dat de verkrachtingen door agenten waar wij van afweten pas het tipje van de sluier doen oplichten.

Er wordt ons verteld dat de politie noodzakelijk is om ons te beschermen van de misdaad. Maar tegelijkertijd zijn het de politiemensen die zich ook schuldig maken aan dit soort afgrijselijke misdrijven. En vaak beschermd het rechtssysteem hen terwijl ze dit doen.

Tegelijkertijd is het rechtssysteem van de overheid ongelofelijk ongeschikt in het oplossen van verkrachtingen die door burgers gepleegd worden. Volgens het Amerikaanse ‘Rape, Abuse and Incest National Network’ zullen 97% van verkrachters geen nacht in een cel doorbrengen.

Om dit op te lossen hebben wij een nieuw systeem nodig – een systeem waarin alle daders van gewelddadige misdrijven verantwoordelijk zijn voor hun daden, zonder de bevoorrechting en onrecht die karakteristiek zijn voor de heerschappij van de overheid.

Originele artikel geplaatst op 12 October 2012 door Nathan Goodman
Vertaald vanuit het Engels door: Christiaan Elderhorst

The prevailing myth about police is that they work “to serve and protect” the people from crime.  Sometimes they may do that, but all too often the police are the ones committing crimes.  I’m not just talking about petty crimes; I’m talking about rape and sexual assault.

Take the case of Milwaukee police officer Michael Vagnini. On October 9th, Vagnini was charged with non-consensually inserting his finger into victims’ anuses on the claim of “searching” his victims for drugs.

The FBI defines rape as “The penetration, no matter how slight, of the vagina or anus with any body part or object … without the consent of the victim.”  By this definition, Vagnini raped multiple people while he was on the job.  In one instance, he allegedly caused his victim to experience anal bleeding for days.  In another, he added insult to injury by allegedly planting drugs on his victim.

Rather than serving and protecting, other officers chose to aid and abet. In one incident, Vagnini’s victim was held down by other officers while Vagnini raped him. Furthermore, the Milwaukee Police Department was aware of these incidents for “a couple of years.” They waited “until authorities recognized a pattern” before they did anything to hold him accountable. Translation: The police department was aware that Vagnini was committing rapes, but they waited to do anything about it until they had determined that he was a serial rapist.

This story is appalling, but sadly it is not unique. For example, in Utah police officers have been known to conduct “forced catheterization” searches, which consist of forcibly inserting a catheter into the victim’s urethra to perform drug tests. In 2004, Haley Hooper was held down by four officers while a catheter was inserted into her vagina.  While this met the legal definition of object rape, her lawsuit was dismissed on the grounds that the officers were protected by “qualified immunity.”  Officers involved in another forced catheterization were promoted rather than prosecuted.

These rapes happened under the cover of “searches,” but some officers are even more brazen. Craig Nash, a San Antonio police officer, allegedly raped a sex worker while he was holding her in custody.  In this case, there was DNA evidence against Nash, which is more than many rape cases have. Yet Nash was able to plead down from sexual assault to “official oppression,” which only carries a sentence of one year.

Meanwhile, Nash’s victim, a transgender woman, was locked up in a men’s prison. There, she likely faced persistent sexual violence and harassment. If not, it was probably because she was placed in solitary confinement, which is widely considered a form of torture. Either way, Nash’s victim faced a harsher punishment from the state’s “justice” system than the man who raped her.

These are just a few examples. Charles Johnson of the Molinari Institute has documented many more cases like this in a short series of blogs titled “Rapists on Patrol.”  But these are just the cases we know about.

Rape and sexual assault are notoriously under-reported crimes. According to the National Crime Victimization Survey, 54% of rapes in the United States are not reported to police.  There are many reasons for this. For example, victims may justifiably fear that scrutiny will be placed on them more than on their rapist, and that the most intimate details of their personal lives will become fodder for victim blaming.

But when the rapist is a cop, the incentives not to report become stronger still. The rapist will be protected not only by sexist social norms, but by his powerful role in the criminal justice system. With such strong incentives for victims not to report, I think it is fair to conclude that the police rapes we’re aware of are merely the tip of the iceberg.

We are told that police are necessary to protect us from crime. But instead, police are committing truly appalling crimes. And for the most part, the legal system is protecting them while they do it.

Meanwhile, the state’s criminal justice system is woefully inadequate even at prosecuting rapes committed by ordinary citizens. According to the Rape, Abuse, and Incest National Network, 97% of rapists will not spend a single night in prison.

To fix this, we need a new system — a system that holds all perpetrators of violence accountable, without the privilege and injustice that has always characterized the rule of the state.

Translations for this article:

• Dutch, Machtsmisbruikers.